County of Franklin v. Jones
95 S.E.2d 863
N.C.
1957
Check Treatment
RodmaN, J.

If any of the four pillars on which the judgment rests suffice to support it, the judgment must be affirmed. This necessitates an examination of each of the reasons given.

Was the jurisdiction of the Superior Court to determine the liability of the land for taxes defeated by a finding that the owners — defendants in the action — had not listed the property for taxes?

The answer is no. The court was invested by statute with the power to determine the tax liability and to foreclose any tax lien G.S. 105-391. The owners of the property were before the court by the service of process. Whether the land was properly listed and the amount of taxes for which the land was liable were factual matters to be made the *277 subject of an issue upon proper traverse of the allegations of the complaint. An admission of liability of the land for the amount of the taxes asserted to be due, either by answer or by default, does not divest the court of jurisdiction if it subsequently develops that the admission was not correct. A judgment appropriately rendered on such an admission is conclusive. Gaither Corp. v. Skinner, 241 N.C. 532, 85 S.E. 2d 909; Stelges v. Simmons, 170 N.C. 42, 86 S.E. 801; Turnage v. Joyner, 145 N.C. 81.

Movants cite in support of the assertion that the court was without jurisdiction because of the failure to properly list the land for taxes. Rexford v. Phillips, 159 N.C. 213, 74 S.E. 337; Stone v. Phillips, 176 N.C. 457, 97 S.E. 375; Phillips v. Kerr, 198 N.C. 252, 151 S.E. 259; and Wake County v. Faison, 204 N.C. 55, 167 S.E. 391. The cases cited and relied upon are not authority for the position taken. The first three cases were under the old statute where the holder of a sheriff’s 'certificate of sale could obtain a tax deed without invoking judicial process and without an opportunity to the owner to have the tax liability judicially determined. C.S. 8030. All then necessary was that the certificate holder should serve notice on the person in whose name the land was listed. A compliance with that statute was no notice to the true owner where the land was improperly listed. The philosophy of those cases is indicated by the following quotation from Rexford v. Phillips, supra: “The Legislature has never provided that a person without authority in law or in fact may enter on the lists an indefinitely described number of acres in a township containing many thousand acres, not in the name of the owner, but of someone else, and thereby confer authority to sell lands thus listed, and by the sheriff's deed pass the title to the lands of another person whose name does not appear in the list, and whose lands are not described therein, and who has never authorized the listing of his land by another, and whose land has not been listed by the chairman of the county commissioners, as required by law in case of the owner’s default. . . . The provisions of the law are adequate for the proper listing of property and the collection of taxes, and the Legislature did not intend that it should he confiscated without notice.” (Emphasis added.) It was the taking without notice and an opportunity to be heard which formed the basis of decision in those cases.

As pointed out in Travis v. Johnston, 244 N.C. 713, Wake County v. Faison, supra, must be interpreted in the light of the facts of that case. When so viewed, it is no authority for the proposition that one served with process and a complaint in which it is alleged that the land he owns is liable for taxes and should be sold to satisfy the tax lien can ignore the court and years later say that the court was without authority to determine the question of tax liability. The presence of *278 the defendants, owners of the property, and the authority of the court to inquire as to the liability of the land for the taxes suffices to permit a valid adjudication of that question. The judgment is not void because of a mistake as to a fact which might have been put in issue.

Did the continuance of the sale from 13 October to 19 October render the sale void and deprive the court of the power to act on the bid then made?

The statutes in effect in October 1945 permitted the sale of real property under judicial decree on any day except Sunday, C.S. 690. Statutory authority was given by which the commissioner might “postpone the sale from day to day, but not for more than six days in all . . .” C.S. 692. The sale was not in fact continued from day to day. The continuance was for a period of six days. The assertion that the failure to postpone each day for the six-day period rendered the sale absolutely void and deprived the court of any power to act on the bid made cannot be sustained. The failure to follow the letter of the statute was, at most, an irregularity which could not affect the purchaser. The language of Ruffin, J. (later C. J.), in Mordecai v. Speight, 14 N.C. 428, is appropriate: “It would be dangerous to purchasers, and ruinous to defendants in execution, to require bidders to see that the sheriff had complied with all his duties. It is said, however, that this will allow sales to be made at other places besides the courthouse, as the same section fixes both the place and the day. The difference is this: a purchaser knows, and is bound to take notice, that the sheriff cannot sell but at the courthouse, and that a sale elsewhere must be void. But the sheriff may sell on Monday, or in certain cases, and under certain regulations; he may also sell the next day. Now, a bidder can no more know whether those provisions have been complied with than whether the sale has been duly advertised.” Williams v. Dunn, 163 N.C. 206, 79 S.E. 512; Wade v. Saunders, 70 N.C. 270; Brooks v. Ratcliff, 33 N.C. 321.

An irregularity in conducting a judicial sale does not render the sale void. It is, of course, voidable. Confirmation by the court with knowledge of the irregularity and with jurisdiction of the subject matter and of the interested party ends the right to complain of the defect. The confirmation is an adjudication that what was done conforms to the directions of the court. Upchurch v. Upchurch, 173 N.C. 88, 91 S.E. 702; Voorhees v. Jackson, 10 Peters 449; Judicial Sales, 31 Am. Jur. 470; 50 C.J.S. 622; 1 A.L.R. 1446.

Was the judgment decreeing the foreclosure void 'because of the minority of three of the defendants? It is difficult to perceive how the minority of three of the defendants could serve as a shield for the adult defendants or excuse their neglect to defend. Each cotenant had a right to pay that part of the tax liability constituting a lien on his share of *279 the land, G.S. 105-411. A judgment rendered by a court against a person under disability who is not properly represented is an irregular judgment. When courts are informed of the disability of a party, they properly make provision for appropriate representation of the party under disability. When this action was instituted, there was nothing to show that any of the movants were under disability. Process regularly issued for and was served on each defendant. They were properly before the court. When the court acquired knowledge of the disability of some of the parties, it was proper for the court to appoint some competent and discreet person to act for those under disability. Hoke, J., in Houser v. Bonsal, 149 N.C. 51, quotes from 14 Enc. PL & Pr. as follows: “ ‘Where the proceedings are conducted without the intervention of a next friend, or a guardian ad litem, in a case where one is required or where the appointment is irregular, the judgment is irregular and voidable. But, while a failure to appoint a next friend or guardian ad litem or to sue by one is irregular, it is only that. The defect is not a jurisdictional one, and hence the judgment is not void.’ ” Cox v. Cox, 221 N.C. 19, 18 S.E. 2d 713; Syme v. Trice, 96 N.C. 243; Burgess v. Kirby, 94 N.C. 575; Fowler v. Poor, 93 N.C. 466; England v. Garner, 90 N.C. 197; Larkins v. Bullard, 88 N.C. 35; Turner v. Douglass, 72 N.C. 127; Marshall v. Fisher, 46 N.C. 111; Keaton v. Banks, 32 N.C. 381; Williamson v. Hartman, 92 N.C. 236, 43 C.J.S. 279, 280; 37 Am. Jur. 842.

When the disability was called to the attention of the court, it acted promptly and appointed a guardian ad litem. The one appointed had been previously appointed guardian ad litem for others. Presumably he had already investigated the factual situation. There is no allegation or suggestion that the guardian ad litem did not in fact act in good faith. When he accepted the appointment, it was his duty not only to act in the utmost good faith, but to act diligently. For any failure to properly perform the duty he undertook, he became liable to those he represented for any loss that they might sustain. He was not, however, required to perform the impossible nor to manufacture a defense if none existed. If, as is now asserted, the lands were not in fact properly listed, the guardian ad litem should have made that defense. True, upon such a defense, the lands could have been properly listed, but only for a period of five years, and taxes assessed for that period instead of the period of some seventeen years for which the county sought collection. One who would seek relief from an irregular judgment must show that he has been prejudiced by the judgment and that he has acted diligently. Collins v. Highway Commission, 237 N.C. 277, 74 S.E. 2d 709; Gough v. Bell, 180 N.C. 268, 104 S.E. 535; Carter v. Rountree, 109 N.C. 29; Harris v. Bennett, 160 N.C. 339, 76 S.E. 217. Nearly seven years elapsed from the date of the decree of confirmation *280 before the minors moved to vacate the judgment. When did they reach their majority? What excuse do they now give for their delay? The record is silent. The Legislature has fixed the time within which a motion can be made to vacate decrees in tax foreclosure actions. G.S. 105-393. This statute would not apply to the minors so long as the disability existed. G.S. 1-17.

There is neither allegation nor suggestion of fraud on the part of Stallings, who purchased, or, forsooth, on the part of anyone.

Does the finding that the purchase price was unjust and inadequate render the sale void notwithstanding confirmation by the court?

In seeking an answer to the question it is proper to look to the decree of confirmation to see what, if anything, was said with respect to the price in 1945. The decree recites the sale on 19 October, that Stallings was the high bidder at $450, that the sale was duly reported to the court, that more than twenty days had elapsed from the sale, and that no upset bid “or objections have been filed or made by any person; and the Court further finding that the price of $450.00 is a just, fair and adequate price for the said lands, and that the same should be confirmed.” Here then was an express finding by the court authorized to act that the price was just and adequate. The parties now complaining were then before the court. Some, as noted, were under no disability. As to them it would seem manifest that the decree of confirmation could not now be attacked because of any asserted inadequacy in price. To grant to one whose property is sold by decree of court the right, five years after the sale and confirmation, to attack the sale because of asserted inadequate price would destroy all respect for judicial sales. Decrees of confirmation entered by courts of competent jurisdiction are entitled to greater respect. With respect to the effect to be given a decree of confirmation, it is said in Upchurch v. Upchurch, supra: “The purchaser is then regarded as the equitable owner, and the sale, as it affects him or his interests, can only be set aside for 'mistake, fraud, or collusion’ established on petitions regularly filed in the cause.” Duplin County v. Ezzell, 223 N.C. 531, 27 S.E. 2d 448; Land Bank v. Garman, 220 N.C. 585, 18 S.E. 2d 182; Sumner v. Sessoms, 94 N.C. 371; Judicial Sales, 31 Am. Jur. 529; 50 C.J.S. 677, 678.

The findings of fact and conclusions drawn from the record are insufficient to support the judgment. Neither the judgment directing the sale, the sale made by the commissioner, nor the decree of confirmation is void. The judgment is

Reversed.

JOHNSON, J., not sitting.